A recent New Jersey Law Journal story by David Gialanella, “Court Affirms $57K Fee Award Following ‘Inexplicable’ $360K Request,” reports that an award of $57,000 in legal fees, in an employment case where the plaintiff recovered about $8,000 at trial and her lawyers sought some $360,000 in fees, was affirmed by a New Jersey appeals court. “It is inexplicable to us how the amounts requested were accumulated given the factual circumstances behind the claim,” the Appellate Division said in Lema v. BTS Holdings, a per curiam decision issued Jan. 18.
The case was lodged by plaintiff Melissa Lema, who had worked as an overnight dispatcher for defendant BTS Holdings, a livery car service. According to the decision, Lema claimed that one of the drivers, an independent contractor, treated her inappropriately—via social media photos and messages, and by touching her shoulder and whispering in her ear—and that she reported the issue to a supervisor. Lema was fired in late September 2014, after about three months on the job, and claimed in her suit that she was told that her services weren’t needed anymore and that she was terminated because she watched pornography while on the job.
Within days of her firing, she filed an action alleging retaliatory discharge. The suit also named BTS Holdings’ owner, Craig Lax, seeking punitive damages based on Lema’s claim that it was Lax who made the decision to fire her. Lax contended that he was unaware of the situation. Lema was represented by McOmber & McOmber in Red Bank.
The judge below was identified in electronic court records as Essex County Superior Court Judge Francine Schott, who oversaw a four-day trial in the case. The jury awarded $5,000 on Lema’s retaliation claim and $2,983 for lost wages, according to the decision. Schott dismissed the claim against Lax, finding that a lone alleged statement from Lema’s supervisor that Lax was behind the firing was not enough to keep him in the case.
Based on the Law Against Discrimination’s fee-shifting provision, the McOmber firm sought $360,588 in fees and $82,83 in costs. Schott deemed the request excessive in what she called a “relatively straightforward” case, reduced the lodestar from $240,392 to $135,843, and also discounted some of the costs. She also included a downward adjustment of 60 percent, though she did add a 5 percent contingency enhancement. In all, the firm was awarded $57,054 in fees and $5,367 in costs.
On appeal, the McOmber firm contended that the fees sought were reasonable, and that Schott unfairly reduced the award. Appellate Division Judges Carmen Alvarez, William Nugent and Susan Reisner affirmed. “We see no reason why there should have been so many attorneys present in the courtroom during the course of trial,” the court said in the unpublished decision. “That seems to be entirely unnecessary duplication of effort in a fairly straightforward case.” “Lema’s counsel called two witnesses,” the panel said. “Defendants had offered Lema substantially more than she recovered by way of settlement. The court took this appropriate consideration into account in making the allowance.”
Also at issue on appeal: The McOmber firm twice moved for Schott to recuse herself based on what they claimed were bias and disparaging comments toward the plaintiff, the first of those motions coming after a pretrial settlement conference. But Schott denied the motions. The appeals court did acknowledge an “arguably less than ideal” demeanor to counsel on both sides, but it affirmed the denials, saying that Schott “exhaustively explained her off-the-record comments, made in the hopes of reaching a settlement, as triggered by the weaknesses in Lema’s case, and she also indicated to defense counsel the weaknesses in their case.”
The court also affirmed Schott’s dismissal of the punitive damages claim against Lax. The panel said Lema failed to establish, under the standard set out in the state Supreme Court’s 1995 opinion in Rendine v. Pantzer, “actual participation in, or willful indifference to,” the conduct at issue, or proof that the conduct was “especially egregious.”